August 19, 2004  ·  Tim Wu

So the question on Grokster-watchers’ minds: Cert? (For non-lawyers: will the Supreme Court hear this case?)
My guess is yes, for 7 reasons, ranging from the more to less legal:

1. These is a stated legal conflict on the Sony standard as between the 7th and 9th Circuits;
2. The 7th and 9th Circuits disagree (albeit in partially in dicta) on the relevance of willful blindness to secondary liability;
3. The Court has these matters in hand: it has granted cert. in many similar cases historically (Sony, 1980s, White-Smith (the Piano Roll case) 1909, Teleprompter and Fortnightly (Cable / Broadcast, 1960s & 1970s);
4. The Court has a vague sense that some far-out stuff is going on in the field of “Computer Law” that maybe it should check out;
5. Law clerks use P2P technology to plan basketball games;
6. JJs. Stevens and Breyer deeply dig this stuff;

And most importantly,

7. The Court loves to be the center of attention, and this would make it so.

  • Jim McCoy

    Law clerks use Kazaa and Bittorrent to plan basketball games? WTF!?!? How exactly is this accomplished? Neither system supports an authoratative namespace, so they are useless for collaboration, and it is not like a basketball schedule (even the entire NBA schedule) is so large that it needs multi-source downloading.

    Methinks someone fed you a line and you bit hard…

  • Alexander Wehr

    ” The 7th and 9th Circuits disagree (albeit in partially in dicta) on the relevance of willful blindness to secondary liability;”

    Does this imply a likely overturn by the supreme court?

  • Dave Ethington

    What was #3 again?

  • Tim Wu

    The line about using KaZaA to plan basketball games was a joke. Actually, clerks use email to plan the games.


  • Raoul

    Tim – I agree with you. The Supreme will probably grant cert. Mainly because of the center of attention theory. As for the joke, some of us are maybe just a little too gullible and we may bite too hard.

    In a side note – let�s hear it for Fred. Fred, you killed like a champion today!

  • Karl

    Are they using WASTE? …it has chat along side the p2p in a design that seems perfectly suited to be used by small teams of co-workers. And the esoteric appeal of the Pynchon allusion is worth the negative visceral reaction.


  • Tim Wu

    I hasten to add that email is a P2P application — if not pure P2P, at least P2P among servers.

    Hence the claim that law clerks use P2P to plan basketball games and of course the annual law clerk pie-eating contest

    The pie-eating contest is no joke — Breyer chambers have won 3 years out of 4.

  • george pieler

    I think Tim is right on ALL 7 points. The Court will want to get into this.

    The more immediate issue, though, is whether Grokster increases pressure for INDUCE action. My guess is yes. One development not mentioned in this forum (so far as I caught) is this week’s letter from INDUCE leaders (Hatch Leahy Frist Daschle) asking copyright office to convene interested parties to ‘work out’ an INDUCE compromise. This is a variation on something I suggested in a Tech Central Station piece posted 8/16, i.e copyright AND TECHNOLOGY expertise should be brought to bear to avoid a ‘rush to judgment’ on the Hill. Unfortunately the Tech side gets short shrift if the copyright office is in charge.

    However Grokster, like the CBO study from last week, does at least make clear this is a complex and two-sided debate. Both can be used to work towards a more rationale compromise than INDUCE (if indeed legislation is needed at all). Key goal if political compromise is needed is to not let it throttle technology, but ‘let the market decide’ with copyright law enforced in a non-hysterical manner. Slowing down INDUCE is, in itself, a big accomplishment.

  • Jonathan in MA

    My question is, what is the status of the RIAA suing 12 year old file-sharers?

    Do the motion picture association and RIAA have the ability/right to sneak a peek at who is sharing files and record their IP addresses for lawsuit?

    Will they be able to continue to flood P2P systems with false files?

  • enonymous coward

    I’m with the other fella, “Cert. den.”
    says it better than I could have myself.

    Stated conflicts do not a good conflict make.
    #3 is irrelevant
    #4 is materially misleading
    #7 cuts the other way. By the time cases taken now are decided, something other than P2P will garner all the attention. What the Court wants to do is get ahead of the curve now, by picking what people _will be obsessing over_ in another four months.

  • Papa

    Re conflict and the granting of cert, see:

    Ulmer, “The Supreme Court’s Certiorari Decisions: Conflict as a Predictive Variable”, American Political Science Review, Vol. 78, pp. 901-911 (1984)